Dixie Sand and Gravel Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dixie Sand and Gravel Company and International Union of Operating Engineers, Local 917, AFL- CIO International Union of Operating Engineers, Local 917, AFL-CIO and Dixie Sand and Gravel Company. Cases 10-CA-11907 and 10-CB-2584 July 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 16, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, exceptions and a supporting brief were filed by Dixie Sand and Gravel Company. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Dixie Sand and Gravel Company, Chattanooga, Tennessee, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint in Case 10-CB-2584 be, and it hereby is, dismissed in its entirety. We find it unnecessary to consider or reply on the Administrative Law Judge's alternative grounds for dismissal of charges in C(ase 10-CB 2584. since we find his primary analysis and conclusion dispositive of the issues presented in that case. Member Walther agrees with his colleagues and with the Administrative Laws Judge that because of the coercion applied to the Employee Committee to accept the proposed contract there was no violation of Sec. 8(b)(3) as alleged in the complaint in Case 10-CB 2584. He therefore finds it unnecessary to decide whether the Union had effectively delegated its bargaining authority to the Employee Committee. Further. however. Member Walther disagrees with the implication of the Administrative Law Judge that the Union's actions arose as a result of the commission of an 81a)( 5) violation by Respondent Employer and therefore there can he no 8(bH3) violation in the circumstances existing herein. Member Walther does not find the Union's actions so inextricably connected to the Employer's violation of Sec. 8(aX5) as to absolutely preclude a violation of Sec. 8(bX3). Hie would therefore rely only on the coercion present herein. as set forth above, in finding no violation of Sec. 8(b)(3). DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: These consolidated cases present issues of a refusal on the part of Dixie Sand and Gravel Company (herein referred to as the Employer) to bargain with the above-named Union upon the termination of an existing collective-bargaining agreement on the ground that the agreement was automati- cally renewed by reason of insufficient notice from the Union to reopen, and of a refusal on the part of the Union, upon request, to sign a new collective-bargaining agree- ment the terms of which had been orally agreed to. The charge in Case 10-CA-11907 was filed by the Union on April 14, 1976,2 and pursuant thereto complaint issued on July 23. The charge in Case 10-CB-2584 was filed by the Employer on June 8, and pursuant thereto complaint issued on July 23. On September 20, hearing was held in Chattanooga, Tennessee. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby make the following: FINDINGS OF FACT I. THE FACTS The Employer is engaged in the dredging and sale of sand and gravel in Chattanooga, Tennessee. 3 Since at least 1948, the Employer has recognized and entered into collective-bargaining agreements with Local 917 or its predecessor Local 910 for a production and maintenance unit of about 15 employees. The most recent collective- bargaining agreement was for the period from May 1, 1973, to April 30, 1976, and "during each year thereafter unless sixty (60) days written notice of any desired change herein is given by either party to the other, prior to May 1 of any such year. If the above notice has been given by one party, the other party may then present any counterproposals in writing to the first party not later than thirty (30) days prior to the expiration date, and only such changes and amendments as are contained in the written proposal shall be discussed by the conferees. If any of the changes on which notice has been given are not resolved prior to the expiration date, they shall become effective as of the date I The cases were consolidated at the hearing by me without objection when it appeared that the allegations of the complaints arose out of a single set of circumstances and that it would effectuate the policies of the Act to consolidate them. 2 Unless otherwise indicated all dates are in 1976. t Jurisdiction is not in issue. The Employer adrmts that it meets the Board's direct outflow standards for the assertion ofjunsdiction. 231 NLRB No. 3 6 DIXIE SAND AND GRAVEL COMPANY they are resolved and the agreement shall continue in effect as amended." On February 18, more than 60 days before May I as required by the contract, the Union sent the following letter to Frank Harrison, general manager of the Employ- er: This is to advise you that the present agreement between Dixie Sand and Gravel Company and this local union, is subject to be reopened 4-30-76. We will be glad to meet with you at any time at your convenience, for the purpose of discussing wages and working conditions. By letter dated March 29, Harrison acknowledged receipt of the February 18 letter and replied as follows: I note that the contents of your letter are not in conformity with the requirements of Article XII of our Agreement inasmuch as you did not give notice "of any desired change" to which we would then be obligated to respond by making "any counter proposals." Accordingly, the present contract, by its explicit provisions, "continues in effect for another year beyond April 30, 1976." 1 remind you that one of the provisions of the continuing Agreement is "that there shall be no strikes, work stoppages or lockouts of any nature or condition during the life of this contract." (See Article IX, Paragraph (10).) By letter dated March 31, the Union acknowledged receipt of the Employer's letter and asserted that its notice of February 18 was proper in that: (1) We have had the identical language in contracts concerning notification since 1957. In this case we gave you the identical notice we have always given you in the past. (2) We also forwarded to you a copy of the "Notice to Mediation Agencies" which plainly states that we have given you notice of the "proposed termination or modification of the existing collective bargaining contract." Additionally, although it had never submitted specific proposals in the past, the Union set forth five specific demands. The Union requested an immediate reply and negotiations, otherwise it threatened to picket beginning May I and to file unfair labor practice charges. On April 7, the Employer sent the Union the following letter: We, likewise, have submitted the question raised in my March 29 letter to legal counsel for opinion, and we are advised that your letter of February 18 was not in proper form to prevent automatic renewal of our agreement. According to our lawyers, what may have occurred in the past cannot have the effect of modifying clear and unambiguous contract language, especially where, as here, it was your union which originally proposed that language. In the past, for reasons of our own, we chose not to raise the issue of your non-compliance with contract reopening requirements. On this occasion, again for reasons of our own, we choose to rely upon the clearly written requirements of our mutually negotiated Agreement. In the event you carry out your threat to institute a picket line on May 1, or thereafter, in violation of our "No Strike" clause, we shall sue your Union for money damages. On April 29, the Union hand-delivered a letter to the Employer requesting arbitration of its interpretation of the contract and refusal to meet. On April 30, the Employer replied, refusing to go to arbitration. In addition, its letter adverted to the fact that the Acting Regional Director for Region 10, by letter dated April 29, had dismissed the charge in Case 10-CA-11907 and that the Union had until May 12 to appeal his decision. The Employer reiterated its position that the contract had automatically renewed and that any strike would be in breach of contract. The Union was advised that any employee participating in such a strike would be subject to immediate discharge. On May 1, the employees went on strike and began picketing. Harrison called John McWilliams, business manager of the Union, to protest that such action was contrary to a promise McWilliams had made 2 days earlier. McWilliams said he would look into the matter. Later that day he called Harrison to inform him that he had removed Roy Dennis, an employee of the Employer, from his position as union steward. He also told Harrison the employees were very upset. Harrison testified that on May 4 he called McWilliams to tell him a three-man union committee had indicated they would be willing to discuss conditions for returning to work and that a meeting had been scheduled for 10 a.m., May 5. He stated, however, that he did not know if he could legally discuss matters with employees in the absence of McWilliams and he asked McWilliams to attend. McWilliams said he was not able to, but that whatever Harrison worked out with the employees would be all right with him. On May 5, Harrison and two assistants met with three employees, Elmer Almond, Roy Dennis, and Harold Sims, and the Employer made a contract proposal. The employ- ees took the proposal to the strikers and a majority voted to accept it. Some employees returned to work that day and all were back to work on May 6. The following week, having been unsuccessful in reach- ing McWilliams earlier, Harrison told McWilliams of the agreement and that the men were back to work. The only remark Harrison could remember McWilliams making at the time was that he did not believe Harrison had given the employees enough money. One week later, Harrison called McWilliams to ask who would draft the new contract (historically, the Employer did so), and McWilliams told him to go ahead. McWilliams reiterated his remark that he did not think Harrison had given the employees enough money. Harrison's secretary prepared the contract and it was delivered to McWilliams on May 14. After 10 days, not 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having received a signed copy back from the Union, Harrison called McWilliams. McWilliams stated he had been too busy to check out the contract. He repeated his remark about not enough money and objected to a paragraph the Employer had inserted in the agreement relative to health and safety matters. Harrison told him if that was all that was keeping him from signing the contract to strike out the paragraph and sign. McWilliams said he had to look the contract over. About a week later, Harrison called McWilliams again and this time McWilliams told him he had received instructions from his legal counsel not to sign. The Union had appealed the dismissal of the charge in Case 10-CA- 11907 to the General Counsel and no decision had been made as of that date. Harrison asked McWilliams if he was waiting for a decision on the appeal. McWilliams replied only that he could not say and could not sign. On June 29, the General Counsel sustained the appeal. II. ANALYSIS AND CONCLUSIONS The first issue presented by the foregoing is Employer's undisputed refusal to meet and negotiate with the Union over a new contract after receipt of notice to reopen to negotiate changes. That such refusal was unlawful and in violation of Respondent's duty to bargain in good faith seems too obvious to me to require discussion. Respon- dent's only defense is that the Union's timely notice was defective because it did not conform to the terms of article XII of the existing agreement requiring the giver of the notice to specify "any desired change." However, the record indicates clearly that the notice of February 18 was essentially similar to notices given to the Employer in 1964, 1967, 1969, and 1973, although the agreements in each of those years contained the same notice provision herein relied upon by the Employer. In my judgment, the Employer's failure to insist upon compliance with the notice provisions of the contract over such a long period of time warrants a finding that it had waived strict compli- ance. Certainly, if that was not its intention, the Employer must be held estopped from now insisting on strict compliance. It can readily be seen that by its past conduct the Employer had given the Union every reason to believe that the inclusion of proposed contract changes in the notice was not necessary to reopen the contract. The Employer's reliance on the parol evidence rule is misplaced. The issue is not one of varying the terms of the contract by extrinsic evidence; the issue is one of waiver or estoppel. The Employer's reliance on Mason City Builders Supply Co., 193 NLRB 177 (1971), is likewise misplaced. There was no past practice in that case indicating that the employer did not intend to insist on compliance with the notice provisions of the contract. The Employer asserts that the Union was on notice before 1976 that the Employer intended in future to insist upon compliance with article XII, because the Employer in 1973 notified the Union it deemed the contract renewed. However, the notice in 1973 was not only defective in content, but also it was untimely, and the Employer's notification that it deemed the contract renewed was specifically addressed only to the untimeliness of the notice. If anything, then, the Union's experience in 1973 could only have lulled it further into believing that the Employer had waived compliance with the contract's requirement of a notice of desired changes. Finally, the Employer's conduct in waiting 40 days to assert that the notice was defective, thus forestalling timely correction, for no legitimate reasons other than "reasons for our own," coupled with its subsequent direct dealings with the employees, demonstrates a flagrant bad faith. The foregoing conclusion is dispositive not only of the complaint allegations in Case 10-CA-11907, but it is also dispositive of the complaint allegations in Case 10-CB- 2584. The gravamen of the complaint in Case 10-CB-2584 is that the Union refused, upon request, to sign a collective- bargaining agreement embodying rates of pay, wages, and other terms and conditions of employment, upon which oral agreement had been reached. The issue frequently posed in cases of this type is whether or not oral agreement was reached. In this case, it is clear oral agreement was reached, and, according to the parties, the issue is whether or not the Union had authorized a committee of employees to negotiate a binding agreement on its behalf. In my judgment, that is not the real issue in the case. Whatever the facts are relative to the Union's delegation of authority to an employee committee, one fact is very clear; namely, the question of delegation arose solely because of the Employer's refusal to bargain with the Union. Thus, had the Employer fulfilled its statutory duty to bargain in good faith, negotiations would have begun before the expiration date of the contract and they would have been conducted not only between the Employer and its representatives, but also, as before, with the Union's employee committee and its business manager. As the record stands, it is clear that the oral agreement upon which the 8(bX3) allegation is founded was obtained as a direct result of the Employer's refusal to bargain and was the product of coercion exerted by the Employer. Thus, the record indicates that the bargaining took place with the Union under threat of suit for an asserted breach of a "No Strike" clause and the employees under threat of discharge for participating in an assertedly unprotected strike. In addition, employee Roy Dennis testified without contra- diction that, at the meeting with Harrison on May 5, Harrison told the committee he did not have to give the employees anything at all, and employee Harold Sims testified, also without contradiction, that after Harrison had made an offer of a 3-year contract with wage increases of 20, 25, and 25 cents for each of 3 years, and after the committeemen told him they would have to take the offer to the men to see if they were willing to accept it, Harrison told them if they did not accept the offer they would be fired and he would hire someone else. It is abundantly clear that the employees had gone on strike because of the Employer's unlawful refusal to bargain and they were unfair labor practice strikers not subject to discharge for engaging in a strike. The assertion that the Union is in violation of the Act for refusing to sign an agreement obtained under these circumstances is patently lacking in merit. Accordingly, I shall recommend dismissal of the complaint in Case 10-CB-2584. 8 DIXIE SAND AND GRAVEL COMPANY In my judgment, the foregoing analysis is dispositive of the 8(b)(3) allegation. However, as noted earlier, the parties have argued the 8(b)(3) allegation on another basis and to avoid a remand in the event the Board were to disagree with the analysis above, I shall set forth my conclusions regarding the parties' arguments. The Employer argues the Union delegated authority to the employee committee to negotiate an agreement and the Union argues it did not. In support of its position, the Employer relies on Harrison's testimony that in his conversation with McWilliams on May 4 McWilliams told Harrison "whatever you work out with the employees will be okay with me," on testimony of committeeman Elmer Almond that McWilliams told the employees whatever they worked out would be all right, and on McWilliams' failure to object to Harrison's having negotiated an agreement with the committee. Whatever variances there may be between McWilliams' and Harrison's testimony about the May 4 conversation, it is undisputed that McWilliams authorized Harrison to meet with the employee committee. The issue presented by this authorization is whether or not it constituted authori- zation to negotiate a contract binding on the Union. In my judgment, the remarks of McWilliams to Harrison, as described by Harrison, cannot be construed to constitute such an authorization. It is inconceivable to me that a union would delegate such authority to members, particu- larly so when the Union had filed a refusal-to-bargain charge against the Employer over the Employer's refusal to negotiate with it. As to the testimony of Elmer Almond, it adds nothing to that of Harrison and is really too vague to be accorded any weight. As to the assertion that McWilliams failed to object, the record indicates that McWilliams would hardly object to the fact that Harrison had met with the committee; he had acquiesced to such a meeting. The fact that he did not expressly state that he had not authorized the negotiation of a binding agreement is, in my judgment, insufficient to support a finding that he had delegated authority to the employee committee. The Employer asserts that McWil- liams' conduct indicates that the Union would have signed the agreement reached with the committee if the appeal in Case 10-CA-11907 had been unsuccessful. That is proba- bly true, but I do not see what relevance that has. The fact of the matter is that at all times relevant the Employer was in violation of its duty to bargain in good faith and that fact is not altered by McWilliams' behavior in response to the uncertainties created by the dismissal of the charge in Case 10-CA-1 1907. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Employer set forth above, occurring in connection with its operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE REMEDY Having found that the Employer has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take appropriate affirmative action designed to effectuate the policies of the Act. In particular, I shall recommend that the Employer bargain collectively with the Union, upon request, as the exclusive representa- tive of the employees in the appropriate unit described below and, if an understanding is reached, embody such understanding in a signed agreement. The record indicates that pursuant to discussions with an employee committee the Employer entered into an agree- ment providing for a wage increase of 20 cents in the first year and it appears that such wage increase was granted to the employees effective on or about May 5, 1976. Although I have found that the Union was not required to enter into a written agreement embodying the terms of the oral agreement, such findings, and the recommendation herein made that the Employer bargain collectively with the Union, upon request, shall not be taken to authorize or require the Employer to rescind the wage increase put into effect at that time. CONCLUSIONS OF LAW 1. Dixie Sand and Gravel Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 917, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at its Chattanooga, Tennessee, facility, excluding office clerical employees, laboratory and technical employees, cooks, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Union of Operating Engineers, Local 917, AFL-CIO, has been at all times material herein, and is now, the representative of a majority of the employees in the aforesaid unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all employees in said unit for the purposes of collective bargaining. 5. By refusing since on or about March 29, 1976, and at all times thereafter, to bargain collectively with the above- named labor organization, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. 6. The refusal of the Union to execute and sign a written agreement embodying the rates of pay, hours, and other terms and conditions of employment of the agree- ment entered into between the employee committee and the Employer did not constitute a refusal to bargain within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10(c) of the Act, I hereby issue the following recommend- ed: ORDER4 Dixie Sand and Gravel Company, Chattanooga, Tennes- see, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engi- neers, Local 917, AFL-CIO, as the exclusive representative of its employees in the unit described above. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of Operating Engineers Local 917, AFL-CIO, as the exclusive representative of all employees in the unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Chattanooga, Tennessee, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Employer's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." where notices to employees are customarily posted. Reasonable steps shall be taken by the Employer to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order what steps the Employer has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint in Case 10-CB-2584 be, and they hereby are, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Union of Operating Engineers, Local 917, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively with International Union of Operating Engineers, Local 917, AFL-CIO, as the exclusive representative of all the employees in the unit described below, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of our Chattanooga, Tennessee facility, excluding office clerical employees, laboratory and techni- cal employees, cooks, guards and supervisors as defined in the Act. DLXIE SAND AND GRAVEL COMPANY 10